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Return to Sender: The Expulsion of Criminal Immigrants from Denmark – An Analysis

Case 1: Iran, 1986.

As Iran and Iraq wage war against each other, Davood Amrollahi, 20, an Iranian citizen, starts his military training.  On April 25, 1987, Amrollahi deserts the Iranian army and flees to Turkey.  

At that time, all asylum-seekers who had deserted the army and left their home countries before the armistice between Iran and Iraq in the summer of 1988, were granted a residence permit in Denmark.  Amrollahi first travels to Greece and then, on August 20, 1989, two years later, he arrives in Denmark to stay for good.  He is granted residence and a work permit on October 12, 1990.  Following another stroke of luck, he becomes a permanent resident four years later and starts his own pizzeria business, while living in Viborg, Denmark.  

Case 2: Denmark, 1987.  

Hizir Kilic is born in Denmark to Turkish immigrants.  In 1988, Hizir’s cousin, Ferhat Kilic, is born in Turkey. At the age of three, he leaves the country together with his family for Denmark. Both boys live here, attend school and are brought up in Copenhagen’s Nørrebro quarter.  

Danish Law on Criminal Immigrants 

According to the Danish Alien’s Act (§22 – 27a), the Danish courts can choose to expel an immigrant either for a fixed period of time or for life.    The courts assess several factors in the decision to expel, such as, the age and the length of residence in Denmark of the immigrant, type of crime and punishment for it, previous convictions of similar character and ties to his/her country of origin.  The longer an immigrant has lived in Denmark, the better protected s/he is in terms of expulsion.  However, certain types of crimes lead to automatic expulsion regardless of the length of stay in Denmark.  These crimes include dealing with narcotics, human trafficking, armed robbery, severe violence, manslaughter and serious sexual crimes.  

From a human rights perspective, the expulsion laws in Denmark give rise to the following points to deliberate.  Should Danish citizenship be granted only by blood or also by the birthplace of an immigrant?  Is expulsion a violation of human rights?  Is this practice in conflict with the European Convention on Human Rights?  Is it fair that long term immigrants risk harsher treatment for brutal crimes?  Apart from the legal basis for expulsion, is there also a cultural argument for the differential treatment of immigrant criminals?  Is the law responding to public opinion or to a political agenda?  This article seeks to address these questions and accommodate the various perspectives on them.

Case 1: Denmark, 1992.

Davood Amrollahi loses all ties with his family after he leaves the Iranian army.  In 1992, still making a living off his pizzeria business, Amrollahi meets a Danish woman and they live together for four years.  She has a daughter from a previous relationship, who moves in with them.  At the time, the daughter is three and grows up to consider Amrollahi her own father.  In 1996, Amrollahi quits his business and the couple has a daughter.  The two of them marry a year later, in 1997.  Their children are raised in adherence to Danish customs.  In the year 2000, Amrollahi, now officially unemployed, starts receiving welfare benefits and vocational training.

Case 2: Denmark, 2003.

In the year 2003, Hizir and Ferhat Kilic are young adults at 17 and 16, respectively.  They speak Turkish and visit Turkey frequently while growing up.  They still live in the Nørrebro quarter of Copenhagen, in a predominantly immigrant locale.  Life in Nørrebro is often characterised by violence and poor living conditions.  For most youngsters there is no incentive to work due to the increasing rejection of immigrants for skilled jobs on the market.

The Choice of Citizenship

In Denmark, citizenship is only granted by blood, not by soil; those born in the country to non Danish parents do not receive automatic citizenship.  According to the Ministry of Integration, one is eligible to apply for citizenship after in Denmark after the age of 18, as in the case of second generation  nine years of living or after nine years of living in the country (Consolidation Act No. 422, 2004).  However; the main problem in the immigrant community here is that even the eligible residents refrain from applying for Danish citizenship.  There is a lack of information about the Danish rules for citizenship and immigrants also tend to hold on to family traditions and cultural values themselves.

In her talk to Humanity in Action fellows, Ms. Rushy Rashid, a journalist and author, explained that the second generation of immigrants faces a dilemma.  This generation is caught between cultures and is subject to tremendous pressure to sustain a traditional lifestyle from their parents, on one hand, and on the other hand, their acceptance in Danish society would hinge on their ability to merge with this new culture and give up their religious or cultural practices.  

Are attitudes of the state and police responsible for the fear thereby preventing formal citizenship?  Former Judge at the European Court of Human Rights, Isi Foighel, believed that immigrants fear police and authority and feel uncomfortable approaching them voluntarily.  This tends to discourage them from starting an application process altogether. “They do not want to have anything to do with the police; they remember the bad experiences they have had.”  

Although the law does draw the line between citizens and non citizens, from a cultural standpoint one can easily analyze an immigrant’s ties to Denmark.  If they were born and raised here, one can argue that they should be considered “long term immigrants.”  

In fact, this argument was purported by Judge Isi Foighel at the European Court of Human Rights, in his dissenting opinion for the case El Boujaïdi v. France, concerning a Moroccan citizen, who resided in France for about twenty years and was living with a French woman whom he had a child with.  Foighel argues that Mr El Boujaïdi belongs to the category of “integrated aliens” or “second-generation immigrants.”  As such, he did not choose his country of residence of his own free will, and he went through his entire upbringing and schooling under the same conditions as French nationals” (Case no. 123/1996/742/941, 1997).

The Non Expulsion of Long Term Immigrants

A recommendation of the Council of Europe’s Parliamentary Assembly on the “Non-expulsion of long term Immigrants” considers the expulsion of immigrants lawfully resident in the country where they were born or brought up, a “matter of serious concern because the European Court of Human Rights case-law is inconsistent and appears to be increasing its severity.”  Prof. Eva Smith also commented on the alarming progression of the tightening immigration policy, following the new Aliens Act.  

In 2002, the list of crimes leading to automatic expulsion was expanded to include an extensive list of terror-related activities (Aliens Act §22 no. 6, 2002).  The Report labels the act of expulsion, unacceptable since it is a “double punishment” - imprisonment as followed by expulsion.  In addition, a considerable number of expelled immigrants are even imprisoned upon arrival in their home country for the crime that they committed in Denmark.  

The report further proposes that a legal immigrant who has been living for many years in the host country, and who is “no longer humanly or sociologically foreigner,” should enjoy some level of protection as a long-term immigrant and must “under no circumstances be expelled.”  The Parliamentary Assembly agreed that expulsion be applied only in highly exceptional cases, where the persons present a real danger to the state with several procedural safeguards.  However, as recommendations, these are not binding legally to any state (Council of Europe, 2001).

Although the right not to be expelled is not included as such among the rights and freedoms mentioned in the European Convention on Human Rights (ECHR), it does appear in the United Nations Covenant on Civil and Political Rights, Article 12, which states that “No one shall be arbitrarily deprived of the right to enter his own country.”

Case 1: Denmark, 1997.

On October 1, 1997, Amrollahi is found guilty of drug trafficking and is sentenced to three years of imprisonment and expulsion from Denmark, with a life-long ban on his return.  

Case 2: Denmark, 2003.

On August 9, 2003, the two teenagers Hizir and Ferhat Kilic, assault and stab an Italian tourist, Antonio Curra, in Copenhagen’s Nørrebro quarter after he refuses to hand over all his money to them.  They leave Curra’s severely injured and bleeding body on the street.  

The case was first heard by the Danish High Court and then the Supreme Court.  Both of the accused were minors at the time of the crime and thus had not had a chance to apply for Danish citizenship to which they were entitled.  Both were convicted by the High Court for robbery and for stabbing the Italian tourist.  The High Court sentenced Ferhat Kilic to ten years of imprisonment and Hizir to eight years.  Furthermore, they were to be expelled permanently from Denmark after having served these terms.  

Both appealed to the Supreme Court since, under Danish criminal law §88, criminals under eighteen can only be sentenced to a maximum of eight years imprisonment.  The Supreme Court decided not to change the ruling of the High Court, based on the brutality of the crime.  Six of the seven Supreme Court judges voted in favour of expelling the two boys from the country for life, pointing out that they both had “non-disputable ties to Turkey and the Turkish culture.”  Ferhat had also committed crimes while in jail after he had turned eighteen (blackmailing and robbery against another inmate).

The Statistics

The decision of the Danish court system regarding this case set the precedent for future criminal cases involving immigrants, and it has revealed an important Danish inclination.  For an understanding of the effect of such rulings, below is a brief look at the figures.  In 2001, 523 immigrants were expelled by a court ruling.  Out of these, the majority (263) were expelled for 3 years, (see table 1).   In 2002, the statistic was 487 (Ministry of Integration, 2004).  

Table 1: Immigrants expelled from Denmark, 2001-2002 (Ministry of Integration, 2005)

Number of years of expulsion Total persons expelled 2001 Total persons expelled 2002

1 year 1 0

3 years 263 226

5 years 178 183

10 years 19 35

Lifelong 62 43

Total 523 487

The Human Rights Argument

From the legal point of view, expulsion is not a violation of Danish law.  The Danish authorities contact the country of origin to obtain valid travel documents after written permission from the criminal.  If the Danish authorities establish a threat to their safety upon deportation, the criminal may be eligible to seek asylum in Denmark at this point.  The criminal will be interviewed by the Refugee Board and the case is investigated for confirmation, according to Section 7 of the Alien’s Act.  These cases are typically immigrants who do not have refugee status anyway and thus cannot be granted asylum.  

However, “expulsion cannot take place if it is in violation with Denmark’s international obligations and duties such as those in the European Convention of Human Rights (Articles 3 and 8)” (Ministry of Integration, 2005).  Additionally, according to the Aliens Act, §31, an immigrant cannot be expelled to a country where s/he risks the death penalty, torture or degrading treatment or punishment.  An immigrant also cannot be expelled to a country where s/he risks persecution for reasons mentioned in the Convention of Refugees, Article 1a (Aliens Act, 2002).  

The European Convention on Human Rights

The European Court of Human Rights has decided a number of cases on the basis of Article 8 in the European Convention on Human Rights.  The other pertinent Article, number 3, states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 states that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (European Convention on Human Rights, 1950).

The European Court of Human Rights has developed case-law on protecting integrated foreigners against expulsion on the basis of Article 8, which secures the right to respect for private and family life.  The Court’s task is to determine whether the expulsion struck a proper balance between the interests at stake, namely, on the one hand, the applicant’s right to respect for his private and family life and, on the other, the protection of public order and prevention of criminal offences.  

The Director of the Danish Institute for Human Rights, Mr. Morten Kjærum, in his speech to HIA Fellows, emphasized that terrorism is one of the greatest challenges to human rights today.  Expulsion often contributes to the escalation of gang activities, violence and drug-trafficking in the receiving countries, which may have criminal justice systems ill-equipped to deal with such problems.  A major television channel, TV2, produced a documentary arguing that expelled criminals are at risk of joining terrorist groups upon their return.  They may not be capable of securing a stable job and most likely lack a family network to support them.  Turning to terrorism becomes a last resort for making a living.  

Quoting a recent study, " A lack of advance notice and the absence of any programs to monitor recently-returned offenders impede receiving countries from assisting with their reintegration.  The result is … sharply rising crime rates.  These problems involve U.S. interests and raise concerns for the international community" (Aleinikoff and Taylor, June 1998).

Case 2: Amrollahi appeals to the European Court of Human Rights

In December 1998, Amrollahi was due to be released from prison since he did not consent to voluntary deportation.  He was detained from that date, in accordance with the Aliens Act, to be repatriated.  After the immigration authorities investigated his case, they found that he would not risk persecution in Iran of the kind which could constitute a basis for his remaining in Denmark.  Amrollahi appealed unsuccessfully to the Danish Courts and decided to take his case to the European Court of Human Rights using Article 8 to make an argument for non-expulsion.

Even though Amrollahi had not been previously convicted, the Court found the character of the crime to be extremely serious. However, the court found nothing to suggest that Amrollahi had maintained strong links, if any, to Iran while he had to be considered as having strong ties to Denmark.  His Danish family, similarly, had no ties to Iran and even if it would be possible for his wife and children to live in Iran, it would nevertheless cause them obvious and serious difficulties.  Moreover, there was also no indication that Amrollahi or his wife could obtain authorization to live in any other country but Iran.  

If the applicant were to be permanently expelled from Denmark, it would mean that the family would be separated without any possibility for them to continue their family life.  The court therefore held unanimously that the expulsion of Amrollahi would be in breach of Article 8 of the Convention.   

Upon consideration of this case, one may argue that the Danish law is in fact in violation of international human rights standards.  This argument could be further strengthened by the Recommendation of the Council of Europe: “Use of expulsion impairs the integration of foreigners in the Council of Europe member states and reinforces the image of foreigners in our countries as ‘second-class citizens.’”  Former Judge Isi Foighel agrees with this point of view.  He claims that “the length of stay in Denmark is more important in the judgement than whether or not the person is a citizen.”

There is no political will to restate the issue as an overall fight against crime rather than an attack on aliens who cannot integrate.  Both criminals of Danish and non Danish origin must be treated for their malpractices through re-education, rehabilitation and allowed to perform to their optimal capacity on the market.  However, Denmark does not have the same legal obligations towards non Danish citizens as its has for its own citizens.  Those over eighteen, who have chosen not to become Danish citizens, lose  some of their benefits.  Those expelled clearly have criminal records.

Danish Media and Public Reactions to Expulsion

A report published by the European Monitoring Centre on Racism and Xenophobia (EUMC) states that 78% of the Danish population supports expulsion of immigrants who commit serious crimes.  13% of the population is in favour of expulsion of immigrants committing any crime (EUMC, 2003).  The same report stated that support for repatriation policies for criminals was about two out of three in the Danish population.  The higher the unemployment rate, the stronger the support is for repatriation policies regarding legal migrants.  People in the lowest income quartile favour repatriation more than those with higher incomes.  

The media has responded by focusing on crime in the immigrant community in Denmark.  The case of the Turkish youngsters was covered extensively by the media both when the crime was committed and also after the Supreme Court upheld the decision of the High Court.  However, as mentioned earlier, one of the largest broadcasting corporations, TV2 produced a documentary entitled “Double Punishment” focusing on the negative aspects of expelling immigrants.  

Citizens believe that Denmark has the right to secure itself against such criminals.  Prof. Eva Smith supports this statement but further stresses that the nation must take responsibility for youngsters growing up in immigrant neighbourhoods with such little understanding of Danish society and tolerance.  She continues that “their poor school education and social conditions make them more inclined to commit crime.”  She urges Danish people not to take the welfare state for granted because it will not solve these problems automatically.  “We must realize our role to welcome and respect immigrants.”

The practice of not granting long-term immigrants the same guarantees and rights as Danish citizens and the risk of the violation of their human rights upon expulsion (which the Danish government cannot monitor) are thus open to debate.  The current Danish public opinion is rooted in a combination of the following factors: the stricter citizenship policies, employment opportunities for immigrants, a lack of reports in the Danish media that bring these issues to the public and inaction regarding the rising conflicts in some communities.  Even though the Danish practice of expulsion is in accordance with Danish law, it goes against trends in international human rights dogma, especially noticeable the European Court of Human Rights’ reversal of judgements (i.e. Amrollahi v. Denmark) made by the Danish courts. A future policy goal lies in seriously considering the recommendations of the European Committee on Migration, Refugees and Demography of the Council of Europe on the non-expulsion of immigrant criminals.

References

Amrollahi v. Denmark, European Court Documents: Case no. 56811/00, July 11, 2002. http://www.coe.int/T/E/Legal_affairs/Legal_cooperation/Family_law_and_children's_rights/Judgments/Press%20release%20Amrollahi.asp

Consolidated Act on Danish Nationality, Ministry of Refugee, Immigration and Integration Affairs, 7 June 2004. http://www.inm.dk/Index/dokumenter.asp?o=61&n=1&d=2728&s=5

Deportation of Criminal Aliens: a Geopolitical Perspective, Margaret H Taylor and T Alexander Aleinikoff, Inter-American Dialog, June 1998.

Danes on the rampage, The Economist, November 13, 1999

El Boujaïdi v. France, European Court of Human Rights, Case no. 123/1996/742/941, September 29, 1997. http://cmiskp.echr.coe.int/tkp197/view.asp item=1&portal=hbkm&action=html&highlight=El%20%7C%20Bouja%EFdi%20%7C%20v.%20%7C%20France&sessionid=3109158&skin=hudoc-en 

Non-expulsion of long-term immigrants, Report Committee on Migration, Refugees and Demography, 27 February 2001. http://assembly.coe.int/Documents/WorkingDocs/doc01/EDOC8986.htm

Report 4: Majorities’ attitudes towards minorities in Western and Eastern European Societies: Results from the European Social Survey 2002-2003, European Monitoring Centre on Racism and Xenophobia, 2003.

Report for 2001 and 2002 to the Parliament’s Committee on Integration:  The Application of the Aliens Act Regarding Courts and Administrative Decisions, Ministry of Refugees, Immigrants and  Integration, May 14, 2005.

The European Convention on Human Rights and its Five Protocol, Council of Europe, Rome, 4 November 

1950. http://www.hri.org/docs/ECHR50.html#C.Art8

Two Young Turks Convicted of Murder Expelled From Denmark for Life, Turkish Press, April 4, 2005. http://www.amren.com/mtnews/archives/2005/04/two_young_turks.php

Interviews:

Former Judge of the European Court of Human Rights, Mr. Isi Foighel, June 28, 2005

Lawyer at the Danish Immigration Services, Mr. Hans Riis, June 27, 2005

Professor at the Faculty of Law, University of Copenhagen, Ms. Eva Smith, June 28, 2005

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